The Supreme Court's Problematic Use of Precedent Over the Past Term: Why Overruling or Refashioning May, In Some Cases, Be Better than Selective Interpretation

After a Supreme Court Term ends, analysts pore over the opinions handed down during the year to generate assessments of the where the Court is at, and where it might be going. There are many angles from which to evaluate the Justices' yearly work-product. For example, one could examine how deferential the Court seems to have been towards the President, Congress, and state and local elected bodies.

One could also assess how (and how consistently) the Court treated so-called "legislative facts" -- that is, matters of general knowledge about the way people and institutions operate, upon which legislatures and agencies routinely make policy decisions. Did the Court seem to require empirical evidence before it allowed such facts to be the basis of government action, and, if so, in what areas? As commentators are sure to observe, in these, and many other areas, the Court seems to be charting an uneven path.

In today's column, I want to focus on yet another topic, cutting across numerous rulings, on which the Court still seems to have work to do in order to deflect criticism - its treatment of its own judicial history and past case precedents, what lawyers call stare decisis.

Many (though not all) of the cases I use this Term to discuss the Court's treatment of stare decisis are ones that reached results that pundits characterized as "conservative." This is not because I think the working conservative majority on the Court (comprised of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) is necessarily more guilty than are the other Justices of the practices I describe. Rather, it is a function of the fact that the overwhelming majority of the most important and closely-watched cases this Term got resolved in the conservative direction.

One Problem In Interpreting Precedent - The Practice of Selective Reading

Every year, the various Justices disagree over how to read particular past rulings, and most everyone on the Court is guilty, at one time or another, of selective memory and quotation when it comes to use of earlier decisions. To my mind, one of the most prominent examples of selective (mis)reading of a past precedent this year was the invocation of Brown v. Bd. of Education by Chief Justice Roberts's plurality opinion (joined by Justices Scalia, Thomas and Alito) in the school integration cases (or "racial balancing" cases, as these "color-blind" Justices described them) from Seattle and Louisville.

After asserting that "when it comes to using race to assign children to schools, history will be heard," Chief Justice Roberts quoted language from the famous Brown versus the Board litigation, to the effect that "full compliance" with Brown's edict required school districts "to achieve a system of determining admission to the public schools on a nonracial basis."

It's true that the Court wrote these words, which, when analyzed in isolation, seem to condemn all governmental consideration of the race of students. But to read Brown as a case about color-blindness is to ignore much of the analysis and language that the Court used to explain why it was invalidating the segregation schemes before it.

Indeed, perhaps the most famous language from Chief Justice Earl Warren's opinion for the Court in Brown spoke not in terms of color-blindness, but in terms of the special damage done to some racial groups when race is used by government in an overt attempt to create racial hierarchy and stigma: "To separate [African-American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

In sum, the plurality opinion quoted the language about achieving a "system of determining admission to public schools on a nonracial basis" without acknowledging that this language was used in a setting where -- unlike the Seattle and Louisville settings, even the modern color-blind Justices would have to concede -- there was a clear stigma and message of inferiority visited upon one race. Such an omission is historically and intellectually misleading, if not dishonest.

Ultimately, while the result in Brown can be reconciled with a color-blind approach, the analysis and language in Brown, read in their entirety and against the historical backdrop that was 1954 America, do not really make Brown very strong stare decisis support for a total or near-total ban on governmental race consciousness.

Current proponents on the Court of a color-blind approach to the Fourteenth Amendment are also guilty of selective use of precedent when they invoke Justice Harlan's famous 1896 dissent in Plessy v. Ferguson, about which my FindLaw colleague Michael Dorf wrote earlier this month. Plessy is the infamous case in which the Court, over Justice Harlan's protestations, permitted Louisiana to mandate separate railway cars for blacks and whites.

Today, supporters of a complete ban on government race-consciousness often invoke Justice Harlan's famous statement that "[o]ur Constitution is color-blind," largely because Harlan's vote in Plessy was the legally right and morally just one. Yet those who invoke Harlan ignore other language from his writing that focused not on absolute colorblindness, but instead on the need to avoid the creation of "caste" in the United States.

Because Louisiana's (and most every other American government's) use of race in the Nineteenth Century tended to promote racial caste, a statement about colorblindness and a statement about anti-caste meant the same practical thing. But in 2007, when use of race in school assignment in Seattle and Louisville does not seem to be deployed in support of, or likely to lead to, racial caste, we must interpret Harlan's opinion more holistically, and should not wrench the "colorblind" sentence from its linguistic and historical context.

Indeed, there are yet other passages from Harlan's dissent that advocates of modern colorblindness ignore even more tellingly. In describing the world that would result if government adhered to his prescription about the use of race, Harlan wrote: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it . . . holds fast to the principles of constitutional liberty."

Small wonder people who want to draw upon Harlan's "colorblind" metaphor don't mention where he himself believed that metaphor would lead us.

A Second Problem Involving Precedent: Honesty in Acknowledging The Overruling of Past Cases

A second interesting and potentially troubling aspect of stare decisis is the reluctance by the Court (or certain of its swing Justices) to be forthright in acknowledging that past precedents are being overruled. This reluctance was also illustrated well this past Term. One prominent example of that was the Court's 5-4 ruling in Gonzales v. Carhart, the case upholding Congress' Partial Birth Abortion Ban Act of 2003.

Most careful Court watchers were not surprised by the result in Gonzales; in 2000, in Stenberg v. Carhart, the Court had invalidated a very similar Nebraska statute by a bare 5-4 majority (with Justice Kennedy in the dissent), and Justice Alito's replacement of Justice O'Connor led many to predict that prohibition of this medical procedure would survive judicial review -- even though the statute proscribing the practice made no exception for the instances in which the procedure was necessary for the health of the woman patient.

As predicted, Justice Kennedy (and the other Stenberg dissenters) joined with Justice Alito to make five votes to uphold Congress' ban. What was less accurately predicted, however, was that the Court would be unwilling to concede that it was changing course. Justice Kennedy's opinion in Gonzales does make a few feeble attempts to distinguish the Congressional law that survived from the Nebraska one that was invalidated. (Interestingly, Justice Kennedy does not try to differentiate the two on the ground that Congressional statutes or factfinding processes are entitled to any more respect that were Nebraska's.)

Yet virtually everyone who carefully analyzes these two cases sees pretty clearly that they are flatly incompatible: The Court rejected the plaintiffs' facial challenge in Gonzales, premised on the lack of a "health of the mother" exception in the statute, when it had embraced a virtually identical challenge in Stenberg. That represents a 180-degree doctrinal turn.

A second troubling example of the Court's unwillingness to admit it was overruling a past precedent was the Federal Election Commission v. Wisconsin Right to Life case. That case involved an "as applied" challenge to the so-called McCain Feingold Campaign Finance Law, passed by Congress a few years ago.

The principal opinion of the Court in Wisconsin Right to Life reformulated the test for when "sham issue ads" by corporations and unions could be regulated - and invalidated such regulation, except when applied to advertising that "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." In so doing, that opinion effectively overruled the Court's watershed McConnell v. Federal Election Commission decision, from 2003, without admitting it.

Even Justice Scalia, who seems happy on the merits to see McConnell go by the boards, said this "faux judicial restraint is judicial obfuscation."

To be clear, I am not saying here that McConnell or Stenberg should not have been overruled -- I express no view on that today. I am saying, instead, that if they are to be overruled, the Court should say so directly.

A Third Problem In Dealing With Precedent: Sticking With Past Cases That Are Themselves Incoherent

A third less-than-ideal feature of the Court's current approach(es) to dealing with stare decisis - a tendency to sometimes stick with a precedent that makes no sense -- was also visible this past Term. One obvious instance was the decision by a plurality of the Court in Hein v. Freedom From Religion Foundation, Inc. (about which I wrote my last column) to distinguish between Congressionally-directed expenditures and those made pursuant to executive discretion and initiative, in deciding when to allow taxpayers standing to assert claims under the Establishment Clause of the First Amendment.

Even if the Court's past cases in this area - most notably Flast v. Cohen and its progeny - seemed to draw this line, such a distinction makes no sense under the Establishment Clause or under Article III. Moreover it is hard to see how anyone has relied on this line, such that it should be preserved when it cannot be defended by reference to any constitutional principle or policy.

A second example, which I shall mention without belaboring, is the Court's adherence to the uncomfortable compromise ruling concerning the Federal Sentencing Guidelines in United States v. Booker in 2005. Cases from this past Term, most notably Cunningham v. California and Rita v. United States, seem to demonstrate to any careful and honest thinker that the appellate "reasonableness review" of federal sentences that Booker calls for cannot really be reconciled with its holding that a trial judge should not be allowed to find specific facts that will justify subjecting a criminal defendant to a higher sentencing range than the defendant would have been subject to in the absence of that factfinding.

And yet the Court this Term ignored the obvious problems with the schizophrenic Booker decision. It tried to implement this incoherent ruling, rather than revisiting and refashioning it.

If the Court wants to reduce charges of judicial manipulation -- and the dreaded "activism" label -- it might do well to concentrate on reading past cases less selectively, by admitting when it is overruling past cases, and by being more willing to reconsider past cases that just aren't working.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.